Commentary Law and Policy

For Its Orchestrators, Campaign to Attack Planned Parenthood More Legal Trouble Than It Was Worth

Imani Gandy

The actions of the "Human Capital" project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But for those behind the project, it may prove to be more legal trouble than it was worth.

Read more of our articles on the Colorado Springs Planned Parenthood shooting here.

After 30 months of effort, anti-choice activist David Daleiden claimed to have definitive proof that Planned Parenthood was in the grisly business of harvesting fetal “body parts” and profiting from their sale. This operation, which Daleiden dubbed the “Human Capital” project, was going to be what finally shut down the behemoth reproductive health-care provider. Conservative websites galore gloated that it would be the final nail in Big Abortion’s coffin.

On July 14, Daleiden released his first video, igniting a firestorm across social media. More than five months have now passed. The actions of the Human Capital project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But—in part because of these consequences—for those behind the project, it may prove to be more legal trouble than it was worth.

In Daleiden’s footage, actors posing as officers of a fake tissue procurement company he created called BioMax appear to be haggling with top Planned Parenthood officials regarding the cost of purchasing fetal tissue—or, as Daleiden put it, “baby parts.”

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There’s nothing illegal about fetal tissue donation programs. The law permits recouping reasonable costs associated with its transport, processing, preservation, quality control, and storage. And nothing in the videos demonstrated that Planned Parenthood was doing otherwise. But because they were heavily edited to make it look like Planned Parenthood officials are using the profits from fetal tissue to buy Lamborghinis and drink expensive wine—and because when it comes to abortion rights, sense and logic are often discarded in favor of inflammatory rhetoric—the videos immediately went viral. The hashtag #PPSellsBabyParts trended on Twitter for days. Lawmakers on a state and federal level rushed to attempt to defund Planned Parenthood, with senators most recently voting to do so last Thursday night as part of an Obamacare repeal. In addition, Planned Parenthood announced that it would no longer accept reimbursement for tissue donation.

As the scandal drags on, however, not a shred of evidence has been produced to suggest that Planned Parenthood broke any state or federal laws in connection with its fetal tissue donation programs.

None of the states that began investigations into Planned Parenthood have found any suggestion of nefarious activity. Federal lawmakers haven’t had much luck, either, despite multiple hearings conducted by different congressional committees. Though House Republicans announced in early October that they would be forming a Benghazi-like special committee to continue an investigation into Planned Parenthood, any possibility that the organization will be found to be in violation of policies regarding fetal tissue donation seems to be flickering out.

What remains, then, are questions about whether or not David Daleiden himself and the organizations he created—CMP and BioMax Procurement Services, the fake tissue procurement company—broke federal and state laws in connection with their crusade against Planned Parenthood, and who coordinated with Daleiden to perpetrate this alleged fraud.

These questions have been teed up in federal court in San Francisco, where a discovery battle has been raging between the National Abortion Federation (NAF) and Daleiden for several months.

“Discovery” is the process in litigation whereby parties to a lawsuit have to, essentially, lay their cards on the table and turn over information that the other side might need to support their claims or defense. And in the lawsuit that NAF filed against CMP, discovery is the process that could unravel a conspiracy involving multiple players all acting in concert to take down Planned Parenthood. Such players may include anti-choice extremists connected to groups like Live Action and Operation Rescue, in addition to some of the anti-choice politicians who jumped at the opportunity to hold congressional hearings and form investigative committees about Planned Parenthood’s supposed dastardly deeds.

But NAF’s lawsuit is about more than CMP’s cynical effort to undermine rights by attacking one of the largest providers of reproductive health care. It is also about NAF’s members—Planned Parenthood affiliates and independent providers who battle incredible odds just to be able to provide a legal health-care service, and the professional association that takes seriously its job of providing a safe space where those providers can meet without fear of harassment.

As outlined in painstaking detail in NAF’s complaint, these providers, many of whom are under constant threat of domestic anti-choice terrorism, often rely on NAF to maintain a shroud of secrecy over its meetings and events so that these providers can feel safe there.

The necessity for such security measures has become obvious in the wake of Daleiden’s scheming. According to NAF court filings, reported incidents of harassment against Planned Parenthood clinics increased ninefold in July, as compared to June. Reported incidents of harassment were even more numerous in August. And in late November, Robert Lewis Dear Jr. was arrested for killing three people and wounding nine others at a Planned Parenthood clinic in Colorado Springs. “No more baby parts,” is what he reportedly said when interviewed after his capture.

Indeed, in September, the FBI warned that there would be “an uptick in attacks on reproductive health care facilities.” As reported by CBS, investigators have tied that uptick directly to CMP’s smear campaign.

So when CMP published footage accusing Planned Parenthood and other NAF members of trafficking in the sale of black-market “fetal body parts,” NAF set about stopping CMP from releasing any more videos that might prove dangerous for its members.

Thus far, NAF’s efforts have been successful.

Within weeks of the first video release, NAF filed a lawsuit in federal court against CMP, BioMax, David Daleiden, Troy Newman (the founder of radical anti-choice extremist group Operation Rescue), and a number of thus far unidentified alleged other parties. Among other civil and criminal allegations, the lawsuit alleges a conspiracy to defraud NAF, perpetrated for the purpose of intimidating and harassing abortion care providers.

Days after NAF filed its lawsuit, it won a temporary restraining order (TRO) blocking CMP from releasing additional footage or other materials that NAF alleges CMP fraudulently acquired at NAF meetings. The judge who issued the temporary restraining order, William Orrick, also ordered CMP and Daleiden to provide responses to NAF’s discovery requests: testimony, documents, and other evidence that NAF needs in order to prove its case that the temporary restraining order should be converted into a preliminary injunction continuing to block the video release.

The most important information sought by NAF is probably the video recordings themselves, many of which were surreptitiously recorded at private NAF events in violation of the explicit nondisclosure agreement that CMP members were required to sign before they could gain entrance into NAF’s annual meetings in 2014 and 2015. The confidentiality agreements are one piece of an extensive security protocol that NAF put in place to protect attendees from anti-choice terrorism.

Daleiden and CMP maintain that the TRO and any preliminary injunction that the court might issue constitutes “prior restraint,” or pre-publication censorship, in violation of the First Amendment. Daleiden believes that the confidentiality agreement that he signed is invalid because in his mind, NAF is an accomplice in Planned Parenthood’s baby parts trafficking scheme.

NAF has countered, and thus far Judge Orrick seems to agree, that First Amendment rights can be waived by contract, which is exactly what Daleiden did. And considering that no federal or state agency has found Planned Parenthood guilty of anything, Daleiden’s continued insistence that he’s an investigative journalist on a crusade to expose the illegal sale of aborted fetal tissue has begun to ring rather hollow.

If the only reason NAF was suing CMP and Daleiden was to make sure that no more video footage containing NAF’s sensitive information is released, Daleiden might be able to rest easy. Although his exposé has fallen apart, leaving a trail of anti-choice violence and tragic destruction in its wake, he and his cohorts might have been able to escape any criminal and civil liability by choosing to not publish any more videos.

But no such luck for him. NAF wants more than just the video footage.

NAF wants to know exactly how Daleiden and CMP perpetrated the operation: who was involved, who infiltrated NAF’s meetings, who funded the project, and who received reports on CMP’s activities. Daleiden and CMP have been desperately trying to avoid providing that information to NAF, which raises questions about what they are trying to hide or who they are trying to protect.

CMP and Daleiden have tried several gambits in their attempts to thwart NAF’s effort to obtain discovery, including pleading the Fifth Amendment as a blanket objection to the information requests. Judge Orrick has swatted them down at every turn, ordering for them to release the information.

Somewhere in those documents is information that CMP and Daleiden would prefer remain undisclosed, including the identity of CMP’s donors and the names of politicians, if any, with whom CMP may have colluded in its effort to take down Planned Parenthood, or who knew about the CMP operation months before the first video was published.

Also contained in the testimony and documents that CMP and Daleiden have been fighting to keep secret are the names of Daleiden’s associates and accomplices—the individuals who infiltrated NAF’s annual meetings under false pretenses. That information may lead to more juicy revelations about which, if any, anti-choice politicians, front groups, or political action committees can be tied to CMP’s smear campaign.

Several Republican politicians have copped to viewing some of the footage long before the videos were publicly released.

Rep. Trent Franks (R-AZ) admitted that he had first seen the video about a month before it was released. When asked why he did nothing about it at the time, he said, “The hope was to have as much information as possible so that the authorities could be notified effectively before the media.”

Rep. Tim Murphy (R-PA), who is a member of the House Pro-Life Caucus and chairman of the Energy and Commerce subcommittee that is investigating the videos, said in a press conference that he had seen the footage weeks prior to its release. After the press conference, CQ Roll Call asked Rep. Murphy why he had waited to mention the video’s existence. After fumbling for an answer, Murphy ended the interview, asked that he not be quoted, and said, “This interview didn’t happen.”

This in and of itself has raised some eyebrows: The fervor with which these politicians have decried the murder of “babies” and the “harvesting” of their “parts” would suggest that as soon as they became aware of Planned Parenthood committing such horrors in facilities around the country, they would have sprung into action.

But they didn’t.

Instead they waited until the Republicans could use a budget showdown as leverage to pursue their vendetta against Planned Parenthood.

If these politicians actively coordinated with Daleiden and CMP, who may have violated numerous federal and state laws, including creating fake identification and secret videotaping, they may not want their identities revealed in connection with NAF’s lawsuit. But NAF and its attorneys have been determined to ferret them out.

And they may have finally gotten their chance. After months of stalling, CMP and Daleiden were ordered to provide to NAF the identities of the “handful of supporters” that were “intimately involved in the planning and funding of the Center’s alleged conspiracy.” On Saturday evening, after their appeal was rejected by the Ninth Circuit and then the Supreme Court, CMP and Daleiden finally complied, according to sources at NAF. The information they gave is under protective order. The court may decide it should be public, but has not yet.

Given the ongoing troubles Daleiden and CMP face in federal court, it’s hard not to conclude that the Human Capital project may have been more trouble for them than it was worth.

Thus far, 11 videos have been released, and while they have riled up anti-choice advocates, so far, no government agency has been able to make any accusation against Planned Parenthood stick. Moreover, public opinion about Planned Parenthood actually improved after CMP began publishing its heavily edited videos.

Evidence suggests that even if CMP and Daleiden can manage to avoid being permanently blocked from releasing any more video footage recorded at NAF meetings, the footage won’t be the end of Planned Parenthood as they had hoped.

Despite the TRO, additional footage found its way on to the Internet thanks to Internet troll and disgraced blogger Chuck C. Johnson, and notorious hacker Andrew “Weev” Auernheimer. Johnson first claimed that the leak came from Congress, but then changed his story and claimed he received the footage from an anonymous person with the user name “patriotgeist.”

But those leaks don’t seem to be advancing the Human Capital project’s agenda, at least not with the current presidential administration in office. Earlier this month, the Senate, after multiple attempts, managed to pass a bill repealing the Affordable Care Act and defunding Planned Parenthood, but that will almost certainly be vetoed by President Obama. And each state that Planned Parenthood has sued after those states cut off the health-care organization’s funding has been ordered to reinstate the funding.

So ultimately, what was the point of this project? To inflame those who already hate Planned Parenthood? To rile up gullible people who think despite all evidence to the contrary, that Planned Parenthood is murdering babies for parts? If so, mission accomplished. But I imagine Daleiden had bigger hopes for this project—like destroying Planned Parenthood altogether. Thus far, those hopes are not panning out. And instead, Daleiden and others involved with CMP could face major consequences, including jail time.

All that remains to be seen is what Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.

We’ll have to wait and see when those names are made public.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

News Politics

David Daleiden Brags About Discredited Smear Campaign at GOP Convention

Amy Littlefield

Daleiden’s claims about the videos’ impact on Planned Parenthood contrast with a recent poll showing that support for Planned Parenthood has increased in the aftermath of the Center for Medical Progress' anti-choice smear videos.

David Daleiden, a year after he began releasing secretly recorded and deceptively edited videos claiming to show Planned Parenthood officials were illegally profiting from fetal tissue donation, appeared to boast about the videos’ purported impact at a luncheon during the Republican National Convention (RNC).

“I think it’s very clear that one year later, Planned Parenthood is on the brink, they’re on the precipice,” Daleiden said at the event, co-hosted by the Family Research Council Action and the Susan B. Anthony List. “Their client numbers are down by at least 10 percent, their abortion numbers are down, their revenues are down and their clinics are closing.”

The luncheon took place at the Hyde Park Prime Steakhouse, near the Quicken Loans Arena in Cleveland, Ohio, where the Republican National Convention is underway. Also in attendance at Wednesday’s luncheon were a slate of Republican anti-choice politicians, including Mississippi Gov. Phil Bryant, Kansas Gov. Sam Brownback, former Texas Gov. Rick Perry, Nebraska Sen. Deb Fischer, and North Carolina Rep. Virginia Foxx.

Daleiden—who is under felony indictment in Texas and the subject of lawsuits in California for his actions in filming the undercover videos—touted efforts to defund Planned Parenthood by state Republican legislators and governors, who used the Center for Medical Progress (CMP) smear videos as a basis for investigations. Those defunding attempts have been blocked by federal court order in several cases.

He celebrated Planned Parenthood’s announcement that it would close two and consolidate four health centers in Indiana, an effort Planned Parenthood of Indiana and Kentucky said would “allow patients to receive affordable, quality health care with extended hours at the newly consolidated locations.” Daleiden made no mention of last month’s Supreme Court decision overturning abortion restrictions in Texas, which dealt the anti-choice movement its worst legal defeat in decades.

“One year ago now, from the release of those videos, I think it’s actually safe to say that Planned Parenthood has never been more on the defensive in their entire 100 years of history, and the pro-life movement has never been stronger,” Daleiden said.

While his tone was victorious, Daleiden appeared to avoid directly claiming credit for the supposed harm done to Planned Parenthood. In a federal racketeering lawsuit brought against Daleiden and his co-defendants, Planned Parenthood has argued that Daleiden should compensate the organization for the harm that his smear campaign caused.

Republican congressional lawmakers have held at least five hearings and as many defunding votes against Planned Parenthood in the year since the videos’ release. Not a single state or federal investigation has produced evidence of wrongdoing.

Daleiden’s claims about the videos’ impact on Planned Parenthood contrast with a recent NBC/Wall Street Journal poll showing that support for Planned Parenthood has increased in the aftermath of the CMP smear videos.